The Long Version: Fletcher Long and Michael Volpe Talking About Joseph Marcy's Case out of Luzerne County

(Note, the name of the child was changed to the pseudonym,
Ruby, because of her age)

A curious technicality is keeping a Pennsylvania man in
jail, despite no longer having any evidence to support his rape conviction.

Joseph Marcy was convicted in 2012 of molesting his daughter
Ruby, who was six and seven when the alleged incidents occurred and nine when
she testified.

At the trial, the only evidence against him was Ruby’s
testimony and a doctor who said bruising in her vaginal region was consistent
with molestation.

Other medical experts have since concluded the bruising was
consistent with numerous things, not just molestation, and Ruby has since
recanted her testimony, testifying in an appeals hearing called a
Post-Conviction Relief Act (PCRA) hearing, that she lied during her father’s
trial.

“And did you want to come in today?” Ruby was asked by John Hakim, her father’s attorney, at this PCRA hearing.

“Yes,” she responded.

“And why is that?” Hakim asked.

“To tell the truth,” she responded.

“And what’s the truth?” Hakim asked again.

“That he did not do it,” Ruby said, recanting.

“The nature of the after-discovered evidence is
recantation.” Judge Joseph Augello, senior judge in the Luzerne County Court of
Common Pleas, said in making the PCRA decision. “Therefore, it is not
cumulative but rather contradictory given the fact that Ruby was the sole
eyewitness to the crime. Defendant took that stand and claimed he did not
commit the crime in question. A complete recantation by the victim raises the
question of whether a crime was committed at all.”

Judge Augello, who heard the original trial and sentenced
Marcy to 20-40 years in prison, overturned the decision on May 20, 2015.

But the Luzerne County District Attorney’s Office appealed
the decision, and the Superior Court of Pennsylvania reversed Judge Augello’s
decision; the court did not rule on the substance of Judge Augello’s argument,
or any arguments which were debated in the PCRA hearing or in the appeal.

Instead the court claimed that Marcy did not file his PCRA
motion quickly enough after finding out that Ruby had recanted, an argument
which inherently implies that every motion Judge Augello accepted and all
hearings he held were done outside the guidelines.

“I’m glad you’re working on this,” said Hakim. “This one has
bothered me (referring to Marcy’s case).”

CYS Inserts Itself into Joseph
Marcy’s Life

The alleged molestation was not the first allegation Ruby
made initially to Luzerne County Children and Youth Services (CYS).

In 2009, after her grandparents on her mother’s side noticed
a bruise on Ruby’s butt, they called CYS.

In interviews with CYS social worker Holly Jones, Ruby
disclosed that her father had been beating her.

But when this went to trial, in front of a juvenile court
tribunal, Ruby was found to be without credibility because she was susceptible
to coaching.

“After reviewing all of the evidence and testimony provided
in this case, I find that the CYS did not present sufficient evidence to prove
that the subject child was the victim of child physical abuse inflicted by Joe
Marcy and witnessed by her mother. The sole evidence presented by CYS is the
statement of the subject child. However, based upon the review of that
testimony, I find that the testimony of Ruby was fabricated and not credible.
Ruby is a six year old child and she stated that she was punished with a wooden
paddle with holes in it had her name and the name of her siblngs written on it.
That statement by Ruby exactly mirrors information that was told to her by her
mother in the past.” The judge in that case concluded.

According to Marcy’s mother, Michelle, Ruby was staying with
her when this decision was made because her son was not allowed to see his
daughter while the investigation was ongoing.

CYS picked Ruby up days after the decision- to transport to
see her father finally- and it was during this car ride when purportedly Ruby
first disclosed, again to Jones, that her father had been molesting her.

Marcy said he’s since concluded that because his attorney-
he received a public defender- did not introduce the evidence properly- the
jury was not made fully aware of the outcome of the initial investigation of
child abuse which concluded Ruby was susceptible to coaching.

For this and other reasons, Marcy also argued ineffective
counsel.

A voicemail with the Luzerne County Public Defender’s
office, which provided counsel, was left unreturned.

“I was arrested in 2009, and charged with rape and related
sex offenses,” Marcy said in a letter to this reporter on July 12, 2017. “The
first time I spoke to the police I implored them to take my DNA and test it.
Edwardsville Police informed me ‘they do not need my DNA, because they do not
have any DNA to test it against.’ They have her statement and that is all they
need.”

A voicemail left with Leman was left unreturned.

Marcy said that Ruby changed her story multiple times- at
different times she claimed it was oral, anal, and in some cases her father
acted alone and in other versions he was with a cousin.

The Edwardsville Police, Marcy said, made a half-hearted
effort to find this cousin, going to his last known address, but when he wasn’t
there, they made no further attempt to find him.

The star witnesses for the prosecution in the trial held in
February 2011, were Ruby, Dr. Michael Rogan, and Jones.

Dr. Rogan testified as an expert that redness in her vaginal
region was consistent with molestation.

As noted earlier, further experts have since pointed out
that there were many explanations for this: “Review of the medical examination
of Dr. Michael Rogan for the Children Advocacy Center describes vulvitis and
perianal irritation which was described as ‘red.’ There I a distinction,
however of the length of duration of the lesion. Acute vulvitis is usually red
or erythematous with swelling, but chronic vulvitis is usually white, scaly,
thickened with whitish patches. Acute general means less than 72 hours while
chronic means more than 72 hours. What Dr. Rogan described as acute vulvitis.
His conclusion was that the presentation is consistent with sexual abuse
because of the alleged history. However this conclusion cannot be made reliably
of the cause and effect of the acute vulvitis from the information presented
and from the lack of elimination of their known causes of vulvitis in this age
group.” Said Dr. Marguerit Salam-Host, in an analysis for the defense.

Marcy was convicted and sentenced to 20-40 years, a sentence
that he believes was extra harsh because he refused to own up to his crime and
proclaimed innocence during sentencing.

Aftermath:

Within minutes of the trial ending, the verdict began to
unravel.

Here’s part of a letter from Michael Lamb to the
prosecutors.

“My name is Michel Lamb. I was at the trial on its final
day. I came with Mekel Marcy and Nicole Marcy to help Nicole because she is in
a wheelchair. I am in no way related. I have never even met Mr. Marcy or his
mother. I am writing this on my own free will.

“As we exited the building coming out onto Water Street, one
of the jurors pulled up in their car and stopped in the middle of the road to
say how sorry they were of the outcome of the trial and verdict. Saying what it
came down to was the stroking motion of Ruby’s hand on the DVD. This person
said there were a couple of the jurors holding onto a not guilty verdict. Also,
that there was a ton of pressure to make a guilty verdict because of how long
they were in there for. Also stating that that the Edwardsville Police
Department was good for nothing. This juror was in tears, smoking a cigarette,
saying that Mr. Marcy was innocent.

“It sounded to me like this person was being forced into the
guilty verdict.”

While interesting, this affidavit amounted to hearsay
evidence and nothing more came of any potential jury tampering.

Within a year of being convicted, Marcy began filing
appeals.

In 2012, Marcy received a letter from an aunt, stating that
Ruby had recanted.

“We heard a rumor that she (Ruby) had recanted,” Hakim said
of this initial letter.

Hakim said that moving forward he followed a process meant to
ensure that Ruby made an official recantation and without being pressured, a
process which included hiring a private investigator and getting an attorney to
advocate on Ruby’s behalf.

After learning of the letter, Marcy immediately filed a PCRA
appeal based on this letter, which was dismissed without prejudice meaning it
could be filed again.

Judge Augello dismissed the PCRA appeal because another
appeal was still making its way through the court.

After the other appeal was denied, a PCRA was appeal was
filed, and Marcy said it was amended several times as he learned more
information of Ruby’s recantation.

After the private investigator, John Gabriele, completed his
investigation, a final PCRA was submitted, leading to the hearing where Ruby
testified to recanting, and finally, to Judge Augello ordering a new trial.

Marcy noted that at no point in the process did the Luzerne
County District Attorney’s Office claim that the PCRA was not filed in time.

Judge Augello held numerous hearings and heard numerous
motions and other filings throughout the process, and at no point did anyone
argue that any was filed outside of jurisdiction.

Indeed, the Luzerne County District Attorney’s office, Marcy
said, argued that the recantation was not credible and this is what they argued
in the PCRA hearing, in briefs, and in the oral argument in front of the
Pennsylvania Superior Court.

John Hakim handled the appeal leading up to the PCRA hearing
and the hearing itself; he said he’s handled between 10 and 1,000 PCRA appeals
and that victory is rare but he’s never had one overturned afterwards.

He said recantations are also rare and no guarantee because
the same judge who oversaw the trial oversees the PCRA hearing and that judge,
Augello in this case, would need to decide about which testimony- the trial or
the PCRA hearing- was more credible.

Though his conviction was overturned, Marcy remained in jail
because the court refused to reduce his bond which was beyond his ability to
pay.

Rather than taking the case to trial- where the county would
no longer have a case- the county appealed to the Pennsylvania Superior Court.

Though the issue of whether the PCRA was filed properly
never came up during the appeals process, this is what the court fixated on
when it made its decision: “After careful review, we conclude that the PCRA
court improperly granted Appellee’s PCRA Petition because Appellee had knowledge
of the victim’s recantation in 2012 and did not raise it until 2014.”

In making this decision, the court acted sua sponte- a Latin
legal phrase- for a court acting on its volition rather than in response to an
argument.

The Pennsylvania Superior Court said this case has been
sealed and, as such, would not provide any further comment.

A voicemail left with the Luzerne County District Attorney’s
office was also left unreturned.

Is the Law on Marcy’s Side?

Because prosecutors never raised this issue, Marcy said he
was never given a chance to defend himself and prove to the court that he did
submit his PCRA in time.

Marcy cited three cases as precedent for his case.

Commonwealth Vs. Medina was included in Judge Augello’s
decision in the PCRA hearing. In that case, the murder conviction against Jose
Medina was overturned in 2011 after nearly two decades when a witness recanted.

“A Philadelphia judge has
ordered a new trial for a man convicted of murder nearly 19 years ago - a
conviction based partly on the testimony of an 11-year-old boy who has since
recanted.

“Common Pleas Court Judge Lisa M.
Rau issued her order vacating the conviction of Jose Medina Jr. on Tuesday and
published a scathing 217-page opinion in which she concludes that the police
coerced false testimony from the boy.

"’The improper conduct that
was committed in this case breeds contempt for our justice system and
compromises our ability to rely on the verdict as being a just outcome,’ Rau
wrote.”

In Commonwealth of Pennsylvania
Vs. Vincent Boyd, a murder conviction from 1983 was reversed in 2016 and the
Pennsylvania Supreme Court reversed a lower court ruling which argued the PCRA
petition was not submitted in time.

In Commonwealth of Pennsylvania
Vs. Jackie Loner, Marcy said the case was most like his. Loner was convicted in
1991 of molesting his daughter in 1989. He received PCRA relief after his
daughter recanted.

In a fourth case, Commonwealth
of Pennsylvania Vs. Mosteller, the Pennsylvania Supreme Court noted this about
rape convictions which rely solely on the testimony of the alleged victim: “whereas here the defendant's conviction is based
completely on testimony of the child prosecutrix and the truth of that
testimony is open to serious question because of the testimony of a
disinterested medical witness, a subsequent recantation of testimony as
supported by this record necessitates a new trial.”

Marcy said in 2012 when he first
learned of the recantation all he had was a letter and it would have been
irresponsible to appeal simply based on the letter which would be considered
hearsay. Indeed, Marcy said, he believes he is being punished for thoroughly
investigating Ruby’s recantation and only appealing after a thorough
investigation concluded her recantation was legitimate.

Marcy said the recantation was
not confirmed until the investigation was completed in 2014, and his attorney
was filing all appropriate filings throughout; at no time did the court or
prosecutors argue that anything was filed improperly.

Matthew Kelly handled this
portion of the appeal and he didn’t respond to a message at his office for
comment.

Conclusion:

Marcy also reached out to
Pennsylvania Governor’s Tom Wolf’s office for relief, but Wolf refused to
intercede, saying it was still in the judicial process.

“Thank you for your recent
correspondence regarding your current incarceration. Please know that it has been
reviewed with the utmost attention, and rest assured that this matter is
extremely important. You and your family must be going through a trying time
and I want to express my sympathy. Regretfully, due to the legal nature of this
matter, my office is unable to provide any assistance that you seek. As
outlined in the Pennsylvania Constitution, I do not have the jurisdiction to
intercede or investigate matters.” Governor Wolf said in a letter to Marcy on
September 19, 2016.

But Governor Wolf has the power
to pardon which is what Marcy was asking; a message left with Wolf’s public
affairs office was left unreturned.

Marcy said his case now rests in
the US Federal Court system, where he hopes an appeal’s court there will
overturn the Superior Court decision and restore him to a new trial.

Luzerne County has a long
history of corruption; it is where the so-called Kids for Cash scandal occurred
and the less well-known custody for cash scandal.